General Terms
1. By using the Services you agree to be bound by these Terms of Use in their entirety for the period of time agreed between the parties, encompassing both the initial billing period agreed at sign-up and such further periods as are renewed automatically (each a “Fixed Contract Period”) in accordance with these Terms of Use.
2. If you are using the Services on behalf of an organization then you are agreeing to these Terms of Use for that organization and confirm that you have the authority to bind that organization to these Terms of Use. In that case "you" and "your" will refer to that organization.
Activation, Your Files and Privacy
3. Use of and Changes to the Services:
a. You may use the Services only in compliance with these Terms of Use.
b. You may use the Services only if you have the power to form a contract with BackupOnline and are not barred under any applicable laws from doing so.
c. The Services may continue to change over time as we refine and add more features and we may modify any content from the Services from time to time.
d. In the event of a material change as set out in clause 3(c), we will provide any user of that aspect of the Services with at least 30 days’ notice prior to taking such action, save where the changes to the Services are the result of (i) minor technical adjustments which can be of no real significance to your use of the Services; (ii) changes required by law; (iii) changes required by necessity (e.g. to ensure the integrity or security of the Services or your data) or (iv) enhancements to the Services to reflect advancements in technology for your benefit, in which case we may not be able to provide you with 30-days prior notice and instead notice may be provided to you after the date of the material change.
e. BackupOnline shall not increase the price of the Services during the fixed term of this Agreement.
f. The notice referenced in clause 3(d) shall set out the scope of the change and enable you to understand the impact of this change on the delivery of the Services.
g. If you do not agree to the material change made to the Services described in 3(d) above, you may terminate your use of the Services within 30 days of receiving the notice, and should you decide to terminate, you shall be entitled to a refund of fees paid for the unexpired portion of the Fixed Contract Period (please refer to clause 19).
h. It is our intention that any such modification as set out in clause 3(c) would not materially reduce the functionality of the Services, however in the exceptional cases where the functionality is materially affected by the modification, we will phase out the modification over a period of 12 months, ensuring that the Service to you remains unaffected for the duration of your Fixed Contract Period, and shall provide you with a clause 3(d) notice prior to your next renewal date to explain the modification to the Services.
5. The Services are activated immediately upon payment. You will be sent an activation email following activation as long as you have provided us with a valid email address.
6. By using our Services you agree to us hosting your files via our infrastructure partners and sharing your files with third parties nominated by you. In addition, as part of the Services we will process information in your files in order make back up files and to display your files to you in a manner that will assist you in using the Service, including image thumbnails or document previews. We may share your information with selected third parties, including sub-contractors who may perform some or all of the Services on our behalf. Subject to these exceptions, we will not share your files with any third party without first obtaining your consent, except in accordance with the BackupOnline Privacy Policy, or as required by applicable law.
7. Aside from the disclosures set out in the BackupOnline Privacy Policy, we will not share your content with others, for any purpose unless you direct us to. How we collect and use your information generally is also explained in the BackupOnline Privacy Policy.
8. You are solely responsible for your conduct, the content of your files, and your communications with others while using the Services. For example, it’s your responsibility to ensure that you have the rights or permission needed to comply with these Terms of Use.
9. We may choose to review public content for compliance with our community guidelines, but you acknowledge that BackupOnline has no obligation to monitor any information on the Services. We are not responsible for the accuracy, completeness, appropriateness, or legality of files, user posts, or any other information you may be able to access using the Services.
Sharing
10. The Services provide features that allow you to share your files with others or to make your files public. There are many things that users may do with your files (for example, copy it, modify it, re-share it). Please consider carefully what you choose to share or make public. BackupOnline has no responsibility for that activity.
Modifications
11. We may revise these Terms of Use from time to time and you shall be provided with at least 30 days’ notice of such revisions, while the most current version will always be posted on the BackupOnline website. By continuing to access or use the Services after revisions become effective, you agree to be bound by Terms of Use then prevailing.
Software and Updates
12. Some of our Services require you to download a client software package ("Software"). BackupOnline hereby grants you a limited, non-exclusive, non-transferable, revocable license to use the Software, solely to access the Services. Your license to use the Software is automatically revoked if you violate these Terms of Use in a manner that implicates our intellectual property rights. We hereby reserve all rights not expressly granted in these Terms of Use. You must not reverse engineer or decompile the Software, nor attempt to do so, nor assist anyone else to do so. Our Services may update the Software on your device automatically when a new version is available. Your acceptance of such updates is required under the Terms of Use.
Account Security
13. You are responsible for safeguarding the password that you use on your BackupOnline account to access the Services (the “Account”) and you agree not to disclose your password to any third party. You are responsible for any activity using your Account, whether or not you authorized that activity. You should immediately notify BackupOnline of any unauthorized use of your Account.
Your General Responsibilities
14. Files and other content in the Services may be protected by intellectual property rights of others. Please do not copy, upload, download, or share files unless you have the right to do so. BackupOnline reserves its right to delete files (without notice to you) where it has a reasonable belief that you do not have the right to copy, upload, download or share such files. You, not BackupOnline, will be fully responsible and liable for what you copy, share, upload, download or otherwise use while using the Services. You must not upload spyware or any other malicious software to the Services.
15. You, and not BackupOnline, are responsible for maintaining and protecting all of your files and understand that unless clearly stated otherwise, BackupOnline is providing you with a backup service and will not be liable for any loss or corruption to the files that you backup arising from your actions. There are no additional costs and expenses for restores using the BackupOnline system, however should you request a custom restore outside of the BackupOnline system, any additional costs and expenses will be explained to you prior to the custom restore, and you will be responsible for the discharge of same.
16. If your contact information, or other information related to your Account, changes, you must notify us promptly and keep your information current.
Limitation of Liability
17. While we limit liability in clause 18, nothing in these terms and conditions shall exclude liability caused by gross negligence:
a. liability for death or personal injury;
b. fraud or fraudulent misrepresentation.
18. If we fail to comply with these Terms of Use, we (and not any Retail Outlet) are responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms of Use or our negligence, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is an obvious consequence of our breach or if it was contemplated by you and us at the time we entered into this contract. The Service is intended for private and non-commercial use, and any other use that you put this product to is effected at your own risk, and we (and any Retail Outlet) have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity. BackupOnline’s aggregate liability to you, save as set out in clause 17, shall be limited to the greater of $50 or the amounts paid by you to BackupOnline (or the Retail Outlet) for the past three months.
Termination
19. You can terminate your Services at the end of your Fixed Contract Period by contacting us by phone between 9am - 6pm (Central) Monday - Friday on (+1) 800 763 7599 at least one week prior to the end of your Fixed Contract Period. Fees paid by you to us prior to your decision to stop using our Services will not be refunded to you, unless your decision to stop using our Services follows a change in:
a. the content of the Services as set out in clause 3; or
b. the Fees as set out in clause 30;
in which cases your fees shall be refunded pro-rata for the unexpired portion of your Fixed Contract Period.
20. We reserve the right at our discretion to not permit you to renew your use of the Services by providing you with at least 4 weeks’ notice prior to the end of the Fixed Contract Period.
21. In the event of a material breach by you of these Terms of Use (as set out below) or as required by law or requirements set down by government agencies, we retain the right to suspend or terminate the provision of these Services to you, with 10 days notice to you, and where possible provide you with an opportunity to remediate the situation within this 10 day period. Where remediation is not possible or is not effected by you, then at the end of this notice period, we shall terminate for material breach of these Terms of Use, and no refund of any fees paid will be offered. It shall constitute a material breach of these Terms of Use if we have a reasonable belief that you:
a. use the Services in any way that would cause us legal liability or be deemed a use for an illegal purpose;
b. use the Services in such a manner that has the effect of disrupting others’ use of the Services;
c. repeatedly or flagrantly violate any of these Terms of Use;
d. act in conflict with a court order, or our providing the Services to you is in breach of a court order;
e. represent a danger to the best interests of other customers or third-parties;
f. exceed your Usage Limit repeatedly, or exceed your Usage Limit on one occasion when that Usage Limit represents the highest available limit, or exceed it through excessive use of storage space;
g. fail to disclose the number of devices on which you are running BackupOnline Backup, be they multidrive devices, network-attached (NAS) hard drives, or external drives (collectively “External Storage Devices”) or otherwise;
h. directly or indirectly reverse engineer, decompile, disassemble, modify, reproduce or create derivative works of the Services or manipulate Services in any manner not specified by us;
i. are found to have used the Services to store, backup or distribute material protected by intellectual property rights (including copyright) of a third-party unless you own or have appropriate rights to such material;
j. engage in activity that damages or is likely to damage our tangible or intangible assets; or
k. otherwise act in breach of the terms of our Acceptable Use Policy.
22. If we suspend or terminate your use, we will use commercially reasonable efforts to work with you to retrieve your files at no additional fee.
Jurisdiction
23. These Terms of Use and the use of the Services and Software will be governed by the laws of the United States.
24. These Terms of Use constitute the entire and exclusive agreement between you and BackupOnline with respect to the Services, and supersede and replace any other agreements, terms and conditions applicable to the Services. These Terms of Use create no third party beneficiary rights. BackupOnline’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable the remaining provisions of these Terms of Use will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights in these Terms of Use, and any such attempt is void, but BackupOnline may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services. BackupOnline and you are not legal partners or agents; instead, our relationship is that of independent contractors.
Cancellation Right
25. Services are provided to all consumers based on when payment will be taken; it is for the first Fixed Contract Period.
26. The first renewal date for the contract shall be deemed to be the Fixed Contract Period.
27. If you wish to cancel your contract during the first 30 days, you may do so by submitting a support ticket to request a refund.
28. If you do not cancel your contract prior to the end of 30 day period as set out in clause 27, the fees for the first Fixed Contract Period will be non-refundable.
Fees
29. All fees payable by you for the Services shall be in accordance with the scale of fees and rates published from time to time by us on our web site (the “Pricing Structure”), and shall be due and payable for provision of the Services in advance of each Fixed Contract Period.
30. The Pricing Structure is determined by pre-agreed usage limits with you (“Usage Limit”). We reserve the right to alter the Pricing Structure, including ceasing to offer elements of the Services as provided for in clause 3. The current Pricing Structure will always be posted on our website and where a significant change (meaning a change that would lead to you paying more for the Services) is made to the Pricing Structure, we will provide you with notice at least 30 days prior to that new Pricing Structure being applied to the Services we provide you. By continuing to access or use the Services after receiving such notice, you agree to be bound by the revised Pricing Structure as and from the start of the next Fixed Contract Period. If you do not agree to the new Pricing Structure, you can then notify us that you want to discontinue use of the Services.
31. In the event that your actual usage increases so that you exceed your Usage Limit, then we reserve the right to charge you for the additional disc space required or to migrate you to a higher Usage Limit (collectively a “Migration”) prior to the end of the Fixed Contract Period, consistent with your increased actual usage. We are not obliged to contact you prior to a Migration, however such Migration is likely to incur additional fees for you under the Pricing Structure and we will provide you with notice of these additional fees following your usage increase. If you do not agree to the Migration decision and do not wish to pay the additional fees, you must then notify us that you want to revert to the previous Usage Limit and take the required steps to effect this change, i.e. a reduction in your usage. Please note that if your actual usage is such that you exceed the highest available Usage Limit available at that time, then it is possible that no such Migration is possible, and we reserve the right to terminate the Services without notice to you in accordance with clause 21(f) of these Terms of Use.
32. All fees for our Services are due in advance and your contract will automatically renew on the expiry of the Fixed Contract Period, at which point fees for the following Fixed Contract Period become payable. BackupOnline shall provide you with notice of the renewal at least 30 days prior to the expiry of the Fixed Contract Period. If you choose to pay by credit or debit card then you authorise BackupOnline to debit your card with the fees due, and to avoid interruptions in the Services caused by rejected credit or debit card charges, BackupOnline reserves the right to update your credit or debit card details (such as expiration dates) where this is not prohibited by law. YOU UNDERSTAND AND AGREE THAT BackupOnline IS ENTITLED TO OBTAIN SUCH UPDATED CARD DETAILS, STORE THEM AND USE THEM TO BILL CHARGES. If you wish to cancel your contract with BackupOnline, you must do so by submitting a support ticket one week before the expiry of the Fixed Contract Period.
33. All fees paid to us are non-refundable except in circumstances set out in these Terms of Use.
34. You acknowledge that in the event that you chose to issue a chargeback via your bank in relation to any fees charged by us, there is a risk that you will be liable for our costs in dealing with the chargeback and recovering any fees properly due to us under the Terms of Use.
Intellectual Property
35. Please be aware that we may use any feedback, comments, or suggestions that you send us without any obligation to you.
36. The Software and other technology we use to provide the Services are protected by copyright, trademark, and other laws of the United States. These Terms of Use do not grant you any rights to use the BackupOnline trademarks, logos, domain names, or other brand features.
Additional Terms applicable to use of BackupOnline Backup
37. Some Services, including BackupOnline Backup and BackupOnline Pro Suite (the “Backup Packages”) are sold on condition that the data being backed up is stored on the internal hard drives of devices that are not classified as External Storage Devices (as defined above), and that the number of such devices does not exceed the limits stipulated in the Pricing Structure. In the event that you wish to backup data stored on External Devices, you are required to disclose this to us and pay such additional storage related charges as set out in the Pricing Structure for that Backup Packages.
38. An upper limit on the number of devices from which backup can be run will be included on each Backup Package. The applicable upper limit will be notified to you at time of Backup Package sale. The upper limit for any single internal or external drive will exclude External Backup Devices, for which the Pricing Structure includes a separate charging methodology. In the event that the number of devices exceeds the applicable limit on the Backup Package sold, BackupOnline reserves the right, but is not under an obligation, to increase the upper limit of your Backup Package without prior notification to you, and increase the charges accordingly.
39. With the exception of our business service, Services that include BackupOnline Backup are not to be used for archiving. You must at all times hold an original copy of the data in the original location on the system it was backed up from and ensure that any External Storage Devices are always connected whilst the Software is running. If you delete files from your computer that have been backed up or disconnect External Storage Devices that have been backed up we will remove the corresponding backup from our servers.
40. You must at all times run the Software on any computer that is being backed up and you must ensure this computer connects to the Internet at least once every 30 days. BackupOnline will remove backups for computers that have not connected to the service for 30 days.
41. If you wish to restore data backed up onto our servers we may require up to 72 hours notice. Whilst ordinarily we would expect your data to be available for restore immediately, we reserve the right to archive data in facilities where it may not be available for immediate access.
